Federal Deposit Insurance v. Barrick (In re Barrick)

518 B.R. 453, 2014 Bankr. LEXIS 4124
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedSeptember 24, 2014
DocketBankruptcy No. 12 B 02646; Adversary No. 12 A 01280
StatusPublished
Cited by6 cases

This text of 518 B.R. 453 (Federal Deposit Insurance v. Barrick (In re Barrick)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance v. Barrick (In re Barrick), 518 B.R. 453, 2014 Bankr. LEXIS 4124 (Ill. 2014).

Opinion

MEMORANDUM OPINION

DONALD R. CASSLING, Bankruptcy Judge.

The decision in this adversary proceeding turns on the failure of both parties to meet their respective burdens of proof.

In Counts I and II of the complaint, the Plaintiff, Federal Deposit Insurance Corporation, acting as receiver of a failed bank, seeks a finding of nondischargeability under 11 U.S.C. § 523(a)(2)(B) and (a)(4). The Plaintiff argues that the Debt- or obtained a loan from the bank by means of a materially false loan application, prepared with the requisite fraudulent intent under § 523(a)(2)(B), and that the Debtor [456]*456committed larceny in obtaining the funds, prohibited under § 523(a)(4). While conceding that the multi-page loan application contained numerous material inaccuracies, the Debtor counters that he neither prepared nor was aware of the pages containing those inaccuracies, as those pages were prepared and inserted by a dishonest third party to replace the original, accurate pages that the Debtor signed. The Debtor argues that the Plaintiff has not met its burden of proving that he made any false written statements or possessed the required intent to warrant a finding of non-dischargeability under § 523(a)(2)(B) or (a)(4). The Court agrees and finds in favor of the Debtor on Counts I and II.

On the other hand, the parties agree that the Debtor did receive a large loan, the proceeds of which are no longer available to the Debtor’s creditors. In Count V, the Plaintiff argues that the Debtor has failed to meet his burden to satisfactorily explain the loss of those assets and should therefore be denied a discharge under 11 U.S.C. § 727(a)(5). The Court agrees and finds for the Plaintiff as to Count V. The Debtor’s discharge is therefore denied.

BACKGROUND

The Debtor is an emergency room physician who agreed to help his mother, Car-role Collins (“Ms. Collins”), and her companion, Constance White (“Ms. White”), obtain a loan to repair the residence on their 130-acre farm property (the “Property”) and to provide support for them in their advancing years. The Debtor’s assistance was needed because Ms. Collins and Ms. White’s financial status rendered them unable to meet standard loan qualifications on their own.

It became apparent from the testimony at trial that, while the Debtor was receptive to entering into new business opportunities to supplement his income as a physician, he did not have the financial or business expertise necessary to achieve those goals on his own. In financial matters, he came to depend on a friend and advisor, Salvatore DiBenedetto (“Mr. DiBenedetto”). It was Mr. DiBenedetto to whom he turned for help in securing a loan for Ms. Collins and Ms. White. Although Mr. DiBenedetto did not testify at trial, he played a central role in this matter, and his business relationship with the Debtor is pertinent to the Court’s decision.

In 2007, the Debtor, having completed his residency in Louisiana, moved to Chicago to assume a better-paying position as an emergency-room physician and needed a short-term bridge loan to purchase a home. A mutual acquaintance introduced the Debtor to Mr. DiBenedetto as a possible source for that loan. Mr. DiBenedetto personally loaned the Debtor $90,000, which he shortly thereafter refinanced through a bank loan.

This initial transaction apparently established a level of trust between the Debtor and Mr. DiBenedetto that soon developed into a broader business collaboration. Together, over a period of years, the Debtor and Mr. DiBenedetto actively explored business opportunities that included investigating the acquisition of a company called Midwest Open MRI, development of retail health clinics in SuperValu drug stores, and a proposal to Midwest Emergency Associates to provide staffing at the Super-valu healthcare clinics.

By the time that Ms. Collins asked the Debtor if he could recommend someone to assist her in securing financing on the Property, he knew whom to call. (Pretrial Stmt, at p. 5, ¶ 6; p. 6, ¶ 7.) Based upon his prior and continuing involvement "with Mr. DiBenedetto in various financial and business matters, the Debtor referred Ms. Collins and Ms. White to Mr. DiBenedetto as [457]*457someone who would be able to assist them with obtaining a loan. (Id. at p. 6, ¶ 7.)

Mr. DiBenedetto told Ms. Collins that because she and Ms. White were not credit-worthy on their own they could not qualify for a loan without a credit-worthy cosigner. (See id. at ¶ 9.) At Ms. Collins’ request, the Debtor agreed to co-sign for the loan, and’ Ms. Collins and Ms. White subsequently quitclaimed the Property to themselves and the Debtor. (Id. at ¶ 10.)

Mr. DiBenedetto proposed that the Debtor and his co-signers borrow the money (hereinafter, the “Loan”) from a bank with which he was affiliated, Areola Homestead Savings Bank (“Areola”). Significantly for purposes of this matter, he also proposed that he should manage the Loan proceeds and the investment thereof, promising that the income generated from those investments would accomplish all of Ms. Collins and Ms. White’s goals: to enjoy a lifetime monthly stipend of $1,500 to $2,000; maintain and improve the Property; and repay the Loan to Areola. (See id. at ¶ 8.)

The Uniform Residential Loan Application (the “Loan Application”) submitted by the Debtor, Ms. Collins, and Ms. White included a listing of the Debtor’s assets and liabilities. (Pl.Ex. No. 2.) As described later in the section of this Opinion dealing with § 523(a)(2)(B), the Debtor and Ms. Collins both conceded at trial that the document produced by the Plaintiff at trial as the actual Loan Application upon which Areola relied contained multiple and significant misstatements about the Debt- or’s assets. However, they both testified that that Loan Application differed materially from the one they signed, which contained only accurate information. They further noted that the pages of the Loan Application bearing the Debtor’s signature (pages three through five) contained accurate financial information, while the pages lacking his signature (pages one and two) were the pages containing significant misstatements.

The Debtor testified that there was never a formal closing for the Loan, neither at the title company nor at a lawyer’s office nor at Areola. Indeed, he testified that he never met with any representative of Ar-eola other than Mr. DiBenedetto. The Debtor testified without contradiction that Mr. DiBenedetto brought the closing documents to the Debtor’s place of work, a busy hospital emergency room. Accompanying Mr. DiBenedetto was his wife, Julia DiBenedetto, who notarized the Debtor’s signature on the closing documents. Because the emergency room itself was too public and hectic, the Debtor and the DiBenedettos met in the hospital’s “family room,” used by physicians and staff to communicate privately with family members of patients. The Debtor credibly testified that he did not review the Loan documents at that time, but simply “signed, signed, signed, signed, signed” the papers quickly so that he could return to his emergency room duties as soon as possible.

For her part, Ms. Collins testified that neither she nor Ms. White attended a formal closing of the Loan.

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Cite This Page — Counsel Stack

Bluebook (online)
518 B.R. 453, 2014 Bankr. LEXIS 4124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-barrick-in-re-barrick-ilnb-2014.